Search form

Adobe Puts an End to Indefinite Gag Order

Adobe Puts an End to Indefinite Gag Order

In a newly unsealed case [.pdf], a Los Angeles federal court ruled that Adobe could not be indefinitely gagged about a search warrant ordering it to turn over the contents of a customer account.

This is important work by Adobe. Gag orders almost always violate the First Amendment; they prevent service providers from notifying users that the government is requesting their sensitive data and from being transparent about surveillance in general. And yet, providers receive indefinite gags with frustrating frequency. In most contexts, the government must do little to justify these gags and instead relies on rote invocations of national security and the sanctity of investigations.

The Adobe gag was issued under 18 U.S.C. § 2705(b), the same law Microsoft is challenging as facially unconstitutional because it allows for indefinite gags.1 These arguments are also at the heart of EFF’s long-running national security letter (NSL) lawsuit, which was argued in the Ninth Circuit Court of Appeals last month.

Thankfully, the court in Adobe’s case recognized the serious harm to free speech these gags represent. It held that orders barring companies from notifying their users about government data requests are both prior restraints and content-based restrictions on speech subject to strict scrutiny. That’s a very high bar. The court found that the indefinite gag order imposed on Adobe fails strict scrutiny because the government could make “no showing[] that Adobe’s speech will threaten the investigation in perpetuity.”

The government’s attempts to save the Adobe gag order were nearly identical to arguments it made in our NSL litigation. It claimed gags don’t even implicate Adobe’s First Amendment rights because the company only wants to speak about information learned from the government, and that an indefinite gag was OK because Adobe could simply come to court when the need for a gag had passed. But on point after point, the court rejected these arguments. The First Amendment requires gag orders to be narrowly tailored, and Section 2705(b) orders and NSL gags come nowhere close to meeting that standard. As the court put it, “the fact that the speaker cannot know when the restriction's ‘raison d'etre fades’ effectively equates to no tailoring at all.”

While the appeals court in our NSL case doesn’t have to follow this court’s lead, we think any First Amendment arguments that can be deployed against 2705(b) orders are doubly effective for NSLs. That’s because the FBI can issue indefinite NSL gags without even going before a court, as Section 2705(b) requires.

Adobe’s fight should demolish another of the government’s arguments in our NSL case: that providers don’t want to speak out about gags. Adobe promises to notify its customers about government data requests in all cases unless “legally prohibited from doing so.” And it goes one step further, stating upfront that indefinite gags “are not constitutionally valid and we challenge them in court.” Following through on this promise gives lie to the unsupportable claim that providers don’t care to speak out on these issues.

Here’s hoping the days of indefinite gag orders are numbered.

1. Section 2705(b) allows a court to issue a gag “for such period as the court deems appropriate.” There’s an interesting split of opinion on whether that language allows for indefinite gag, or whether the word “period” implies a finite limit. The court in Adobe’s case determined that periods can in fact be indefinite, which led to its First Amendment ruling.

Related Updates

The California Supreme Court just rejected the government’s attempt to require a youth probationer, as a condition of release, to submit to random searches of his electronic devices and social media accounts. The trial court had imposed the condition because the judge believed teenagers “typically will brag” about drug...

EFF, ACLU, and Stanford cybersecurity scholar Riana Pfefferkorn filed a petition in November 2018 asking a California federal court to make public a ruling that apparently denied a request by the Justice Department to force Facebook to break the encryption of its Messenger application in order to facilitate...

Richmond, Virginia—On Thursday, January 31, at 8:30 am, the Electronic Frontier Foundation (EFF) will ask a federal appeals court to find that the act of clicking on a URL or weblink isn’t sufficient evidence for law enforcement to get a warrant to search someone’s home.The hearing involves a child pornography...

EFF joined an effort to unseal court records today in a groundbreaking case where the government reportedly tried to force Facebook to compromise the encryption in Facebook Messenger voice calls. Earlier this year, Reuters reported that the government sought the company’s assistance in carrying out a wiretap and intercepting...

Journalists face increasingly hostile conditions covering public protests, presidential rallies, corruption, and police brutality in the course of work as watchdogs over government power. A case before the U.S. Supreme Court threatens press freedoms even further by potentially giving the government freer rein to arrest media people in retaliation...

You shouldn’t be convicted by secret evidence in a functional democracy. So when the government uses forensic software to investigate and build its case in a criminal prosecution, it should not hide that technological evidence from the defense. In an amicus brief filed today EFF urged the Ninth Circuit...

Five of the largest U.S. technology companies pledged support this year for a dangerous law that makes our emails, chat logs, online videos and photos vulnerable to warrantless collection by foreign governments. Now, one of those companies has voiced a meaningful pivot, instead pledging support for its users and...

Among the many privacy challenges posed by social media, one has flown largely under the radar: balancing defendants’ due process rights to access exculpatory information against the crucial privacy protections of the Stored Communications Act (SCA). Here’s the problem: prosecutors have broad powers to demand access to stored communications as...

This week, Senators Hatch, Graham, Coons, and Whitehouse introduced a bill that diminishes the data privacy of people around the world. The Clarifying Overseas Use of Data (CLOUD) Act expands American and foreign law enforcement’s ability to target and access people’s data across international borders in two ways. First...